Citation Nr: 21007366 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-06 535A DATE: February 9, 2021 ORDER Entitlement to a compensable rating for service-connected hypertension, currently evaluated as zero percent disabling is denied. FINDING OF FACT The Veteran’s hypertension requires continuous medication for control but she does not have a history of diastolic pressure predominantly 100 or more; nor does the Veteran have diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. CONCLUSION OF LAW The criteria for entitlement to a higher evaluation of hypertension, currently evaluated as zero percent disabling, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to July 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that this matter was remanded in December 2018 to allow the Veteran the opportunity to be afforded an examination to determine the current severity of her hypertension disability given that the most recent examination of record at the time of the December 2018 decision had been conducted in December 2012. The development prescribed in the Board’s December 2018 remand decision has been accomplished, and the claim has now been returned to the Board for further action. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board’s remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. Increased Ratings Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found, a practice known as “staged” ratings. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. Hypertension is rated under Diagnostic Code 7101. 38 C.F.R. § 4.104. Under Diagnostic Code 7101, hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, is rated 10 percent. Hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent. 38 C.F.R. § 4.104, Diagnostic Code 7101. Where the schedule does not provide a 0 percent rating for a Diagnostic Code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes that the plain language of Diagnostic Code 7101 contemplates the effects of medication. McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016). The Board notes that the rating criteria for Diagnostic Codes 7101 are successive. The rating for each higher disability rating includes the criteria of each lower disability rating. Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152 (2009); Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive “and” and “with” in a statutory provision means that all of the listed conditions must be met). Entitlement to a compensable rating for service-connected hypertension, currently evaluated as zero percent disabling is denied. The Veteran contends that she is entitled to an initial compensable rating for her service-connected hypertension. The Veteran through her representative asserts that she is entitled to a compensable rating at 10 percent for her hypertension disability. The Veteran reported that her hypertension was not well controlled and that her medication had been changed several times. See Appellate Brief Received by the Board in December 2020. Treatment records received in February 2012 contain blood pressure readings of 110/76 (February 2011); 110/70 (March 2011); 110/70 (April 2011); 100/60 (July 2011); 102/80 (October 2011); 110/64 (November 2011); 120/80 (January 2012). In a private treatment record dated March 2014 it is noted that the Veteran complains of hypertension. There is one blood pressure reading which is 129/83 and the treatment prescribed notes that the Veteran should continue lisinopril tablet, 20 mg, once a day. See Medical Treatment Record-Non-Government Facility Received June 2019. The Veteran submitted additional private treatment records which note that she is prescribed blood pressure medication on a daily basis. See Medical Treatment Record-Non-Government Facility Received June 2019. The Veteran’s hypertension disability was evaluated in August 2012. The examiner noted that the Veteran’s blood pressure readings were 132/75, 130/69, and 132/61. The examiner recorded the Veteran’s medical history by stating that the Veteran had multiple readings throughout her military career. It was also noted that the Veteran had elevated blood pressure while on active duty and started taking medications in December 2006. See CAPRI Treatment Records Received in May 2020. The VA conducted an examination in December 2012, to evaluate the Veteran’s hypertension disability. The December 2012 examination notes that her hypertension is controlled by continuous medication. In addition, this examination recorded her current blood pressure readings. The Veteran’s blood pressure readings were recorded as 124/83, 114/83, and 128/77. The examiner noted that the date of the Veteran’s hypertension diagnosis was 2006. The examination offered no further explanation or opinion concerning the severity of the Veteran’s symptoms and no discussion of medication history. The examiner noted that the Veteran’s hypertension did not impact her ability to work. The Veteran was afforded another VA examination in January 2020. The Veteran’s blood pressure readings at the time of the examination were recorded as 138/72, 137/74, and 121/70. The Veteran’s medical history was provided by the examiner. The examiner stated that the Veteran reported that at her discharge medical examination she was diagnosed with hypertension in 2006. It was also noted that the Veteran stated that she did not recall the medication she was started at the time of her diagnosis, but she indicated that it was changed twice since that time. Additionally, it was noted that the Veteran is currently taking Lisinopril 20 mg daily and has routine follow-up appointments with her primary care physician and checks her blood pressure at home daily. The Veteran reported that about four years ago she has fluctuations of her blood pressure ranging from the 120s to 140s. She also reported that currently her blood pressure has been stable and that she has had no complications. The examiner noted that the current level of severity of the Veteran’s hypertension is mild and also stated that the Veteran reported that her blood pressure has been stable and since diagnosis her medication has changed three times and she is currently taking Lisinopril 20 mg daily. In June 2020, the Board received a medical assessment dated March 2007 from private physician EJ which indicated that the Veteran was having some hypertension. There was only one blood pressure reading provided and the reading noted is 162/98. In total, of all of the documented blood pressure readings of record in the Veteran’s claims file during the current period of appeal, including those from the Veteran’s VA examinations, only one is above the levels that meet the criteria for a rating in excess of 0 percent for service-connected hypertension. The Board acknowledges that the medical evidence of record, indicates that the Veteran has consistently had to take medication for her blood pressure since December 2006 and both the December 2012 and January 2020 examiners have indicated that the Veteran’s hypertension is controlled by ongoing continuous daily use of medication. The medical records indicate that the Veteran’s blood pressure was out of range on only one occasion, which dates all the way back to 2007 when the Veteran had a recorded systolic pressure of 162. Since March 2007, the Veteran’s blood pressure readings have not included any instances of readings where her diastolic pressure was 100 or greater or where her systolic pressure was 160 or greater. The Board notes that, taken altogether, all the blood pressure readings are consistent with the disability picture contained within the Veteran’s case file, and the disease progression for treated or controlled hypertension. The evidence simply does not show hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more, who requires continuous medication for control. In total, of the numerous documented blood pressure readings of record in the Veteran’s claim file, only one was above the level that meets the criteria for a rating in excess of zero percent for service-connected hypertension. Thus, the Veteran’s record does not reflect a systolic pressure predominantly 160 or more. Therefore, based on a review of the evidence of record, the Board finds that a rating in excess of 0 percent for the Veteran’s hypertension disability is not warranted under Diagnostic Code 7101. 38 C.F.R. § 4.104. The Veteran’s hypertension has been controlled by medications and there is no evidence of hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more which requires continuous medication for control, as the Veteran’s blood pressure was consistently less than a systolic of 160 or a diastolic of 100. While the Veteran’s treatment records show one systolic pressure reading of 160 or more, the Veteran did not predominantly have blood pressure readings at that level. Further, the United States Court of Appeals for Veterans Claims has found that a single reading demonstrating a systolic pressure of 160 does not demonstrate that the Veteran has a history of systolic pressure predominantly 160 or more. McCarroll v. McDonald, 28 Vet. App. 267 (2016). Because the overwhelming majority of the systolic pressure readings were below 160 and the overwhelming majority of the diastolic pressure readings were below 100, the Board finds that the Veteran’s blood pressure readings during the appeal period were not predominantly in excess of a 0 percent disability rating. Moreover, at the time of the most recent blood pressure check in January 2020, the examiners recordings were within normal range for both systolic and diastolic pressure readings. McCarroll v. McDonald, 28 Vet. App. 267 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of Diagnostic Code 7101 contemplates the effects of medications). Since the evidence does not show that the Veteran’s blood-pressure has been predominantly 100 or more for diastolic pressure with continuous medication, or 160 or more for systolic pressure, the preponderance of the evidence is against a finding that a higher rating is warranted. Therefore, the criteria for an increased rating for hypertension have not been met or nearly approximated at any time during the appeal period. 38 C.F.R. § 4.104, Diagnostic Code 7101. As the preponderance of the evidence is against a rating in excess of 0 percent for hypertension, the claim for an increased rating must be and is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.